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Council of the European Union

Security-related export controls I - Dual use items and technology

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I. DUAL USE ITEMS

(a)

Council Regulation (EC) No /2009 of 5 May 2009, setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items

- Summary of the regulation

- Background

(b)

Best practices agreed by Member States in the area of dual use export controls

(c)

Joint Action 401/2000 CFSP concerning the control of technical assistance related to certain military end-uses

I. DUAL USE ITEMS

(a) Council Regulation (EC) No. 428/2009 of 5 May 2009 (+COR) setting up a Community regimes for the control of exports, transfer, brokering ad transit of dual-use items (recast) (and corrigendum) which entered into force on 27 August 2009.

(On the same date Council Regulation (EC) No 1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual use items and technology was repealed)

(NB:The search facility will enable rapid consultation of the text and lists of controlled dual-use items).

Summary

Exports, transfer, brokering and transit of dual use items are controlled at Community level by Council Regulation (EC) No. 428/2009. The Regulation, aimed at facilitating legitimate trade and allowing resources to be concentrated on the control of sensitive exports, transfers, brokering and transit of dual use items, and the combat of fraud, is composed of the following major elements:

the Regulation itself, which inter alia:

-	defines (in Article 2) what is meant by "dual-use items" (which include software and technology), "export", "exporter", "export declaration", "broker" and "brokering services", "transit" the "Community General Export Authorisation" and other types of export authorisation that can be granted at national level;
-	describes the scope of the Regulation: - in addition to the dual-use items listed in Annex I to the regulation, Article 4, known as the "catch-all clause" requires authorisation for exports of any items which are or may be intended for use in connection with weapons of mass destruction, as well as conventional arms if these are to be exported to destinations under an arms embargo;
-	creates a Community General Export Authorisation (Article 9(1) and Annex II) for all but the most sensitive listed dual-use items for seven "like-minded" third countries;
-	for all other exports for which an authorisation is required under the Regulation, leaves to the *national* authorities the final decision as to whether to grant a national, global or individual export licence (Article 9(2)), thus striking a balance between the principle of Community competence and the legitimate concerns of Member States to remain in control of matters relating to their national security;
-	lays down rules for information exchange and consultation between Member States concerning decisions to grant export licences, etc. (Article 13);
-	sets up a "Coordination Group" (Article 23) chaired by the Commission, at which each Member State is represented, in order to examine questions concerning the application of the Regulation. Under Article 23(2), the Coordinating Group may consult organisations representative of exporters concerned by the Regulation.

the annexes:

-	Annex I	The common list of dual use items subject to controls.
		This list, drawn up in full conformity with the obligations and commitments which Member States have accepted as members of the relevant international non-proliferation regimes and export control arrangements (including the Wassenaar Arrangement ) the Missile Technology Control Regime , the Nuclear Suppliers' Group , and the Australia Group or by ratification of relevant international treaties, (such as the Chemical Weapons Convention ) is updated according to developments in such regimes, arrangements and international treaties.
-	Annex II	The Community General Export Authorisation under which all but the most sensitive listed dual-use items are exported to Australia, Canada, Japan, New Zealand, Norway, Switzerland and the United States.
-	Annex IIIa	A model form for use by all Member States for national, global and individual export authorisations.
-	Annex IIIb	A model form for use by all Member States for brokering authorisations
-	Annex IIIc	Common elements for publication of general export authorisations.
-	Annex IV	Subjects to control intra-Community transfers of the most sensitive dual use items listed in Annex I.

Details of Member States' national competent authorities in charge of granting export authorisations, together with the internet addresses of Member States' websites providing information on export control legislation and national procedures are available here.

Background

In June 2003 the European Council in Thessaloniki adopted the Action Plan against the Proliferation of Weapons of Mass Destruction, paragraph 21 of which called for the launching of a "Peer Review of all Member States' and Acceding Countries' export controls". Paragraph 21 states that "in order to better coordinate EU Member States' export control activities and to learn from each other's experience a Peer Review in all Member States and Acceding States should be conducted."

The EU Strategy against the proliferation of Weapons of Mass Destruction adopted on 12 December 2003 contains as an element for EU action the reinforcement of the efficiency of export control in an enlarged Europe and reiterates the need for a successful Peer Review.

The first stage of the Peer Review was completed in July 2004. It was conducted in clusters of two to three countries each, which examined national legislation and its implementation in order to establish best practices in the enlarged Union. The Commission Services coordinated the Peer Review and were assisted by a Task Force, which drew up an analysis and recommendations based on clusters’ reports. On 13 December 2004 the Council issued a statement which includes the recommendations further to the Peer Review, and underlines the importance the EU attaches to efficient export controls, both internally and externally.

The implementation of the recommendations resulting from the Peer Review was taken forward as a priority by the Council Working Party on Dual-Use Goods in 2005 and 2006.

Based on discussions concerning the implementation of the Peer Review, both within the Working Party on Dual Use Goods and the Article 18 Coordinating Group and on the results of consultation meetings with exporters, on 18 December 2006 the Commission presented to the Council a Communication and a proposal for a recast Council Regulation setting up a Community regime for the control of exports of dual use items and technology which take into account the recommendations of the Peer Review and the results of a subsequent impact assessment study, as well as States' obligations under UNSCR 1540.

As announced in the above Communication, and based on discussions within the sub-group on new Community General Export Authorisations (CGEAs) of the Working Party on Dual-Use Goods during 2007, in December 2008 Commission presented to the Council a proposal for new Community General Authorisations for certain non-sensitive dual-use items to certain non-sensitive countries. The proposal covers six new CGEAs.

(b) Best practices agreed by Member States in the area of dual use export controls

(i) a checklist that Member States can use to benchmark their existing practices on interaction with industry to achieve a higher level of awareness by EU enterprises of export controls and to ensure their full support and active cooperation in the fight against proliferation WMD was noted in a report by Council on 12 December 2005

(ii) best practice recommendations for elements of a Community End-Use Certificate

Pursuant to the recommendations of the 2004 Peer Review, at its meeting on 23 December 2008 the Permanent Representatives' Committee took note of best practice recommendations for elements of a Community End-Use Certificate (agreed by the Working Party on Dual Use Goods) to be provided, when appropriate, duly signed and stamped, by exporters applying to their national authorities for authorisations to export dual use items (cf. Article 9(2) of Council Regulation (EC) No. 428/2009).

For more information go to

http://www.ec.europa.eu/comm/trade/issues/sectoral/industry/dualuse/index_en.htm

(c) Joint Action 401/2000 CFSP concerning the control of technical assistance related to certain military end-uses

By applying controls to technical assistance related to weapons of mass destruction, this text constitutes a first step towards harmonisation of controls on services related to dual-use goods. Article 3 provides for a second step by foreseeing the possibility of controlling technical assistance related to conventional military end-uses provided in countries subject to European Union, OSCE or United Nations Security Council arms embargoes.

Last update: 18/11/2009